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After a jury found plaintiff's patents infringed and awarded damages, defendants renewed a motion for indefiniteness based on term "look and feel" in patent

DDR Holdings, LLC ("DDR") filed a patent infringement action against multiple defendants alleging infringement of U.S. patent Nos. 6,629,135 ("the '135 patent") and 6,993,572 ("the '572 patent"). The case went to trial on October 8, 2012 against Digital River, Inc. ("Digital River, Inc. ("Digital River"), National Leisure Group, Inc., and World Travel Holdings, Inc. (collectively, "NLG"). After a five day trial, the jury returned a unanimous verdict finding that Digital River infringed several claims of the '572 patent and awarded damages to DDR of $750,000 for the period of the issue date of the patent, January 31, 2006, through the verdict date, October 12, 2012. The jury also found that NLG infringed several claims of the '572 patent and several claims of the '399 patent. The jury awarded damages to DDR of $750,000 for the period of the earliest issue date, January 31, 2006, through the verdict date.

After the trial, Digital River contended that it was entitled to judgment as a matter of law that the asserted claims were invalid as indefinite. Digital River argued that because the patent specification lacked the required objective to allow one of ordinary skill in the art to know when the claimed "look and feel" element has been achieved. To make this argument, Digital River relied on Datamize, LLC v. Plumtree Software, Inc. where the Federal Circuit found the term "aesthetically pleasing" to be indefinite because the patentee "offered no objective definition identifying a standard for determining when a interface screen is aesthetically pleasing." Datamize, 417 F.3d 1342, 1350 (Fed. Cir. 2005).

The district court disagreed finding that the term "aesthetically pleasing" is analogous to the concept of "look and feel" in the patents-in-suit. As explained by the district court, "[t]his court previously defined 'look and feel' to be 'a set of elements related to visual appearance and user interface conveying an overall appearance identifying a website; such elements include logos, colors, page layout, navigation systems, frames 'mouse-over' effects, or others [sic] elements consistent through some or all of the website.'" The district court explained that "[t]he claims define the question of whether the 'look and feel' of the web pages that Digital River serves are 'based on' the look and feel of the referring host site. A comparison of visual elements according to the Court's construction between a pair of websites is precisely the type of infringement question for the trier of fact to decide. Such a comparison does not render the jury's decision subjective. Indeed, claims need not have mathematically precise boundaries so long as the patent gives examples and general guidelines. See Enzo biochem, Inc. v. Applera Corp., 559 F. 3d 1325, 1335 (Fed. Cir. 2010) (the term 'not interfering substantially' does not render claims indefinite); Ecolab, Inc. v. Envirochem, Inc., 264 F. 3d 1358, 1367 (Fed. Cir. 2001) (terms like 'about' and 'substantially' are descriptive terms commonly used in patent claims to 'avoid a strict numerical boundary to the specified parameter.').

As the district court further explained, "[a] finding of indefiniteness must overcome the statutory presumption of validity. See 35 U.S. C. Section 282. That is, the 'standard [for finding indefiniteness] is met where an accused infringer shows by clear and convincing evidence that a skilled artisan could not discern the boundaries of the claim based on the claim language, the specification, and the prosecution history, as well as her knowledge of the relevant art area.' Halliburton Energy Servs., Inc. v. M-LLC, 514 F.3d 1244, 1249-50 (Fed. Cir. 2008). The Court does not find that Digital River has met its burden."

As a result, the district court denied the judgment as a matter of law as to a finding of indefiniteness.